State of Tennessee v. Lance Elliott Falcon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 27, 2016 Session
STATE OF TENNESSEE v. LANCE ELLIOTT FALCON
Appeal from the Criminal Court for Knox County
No. 96800 G. Scott Green, Judge
No. E2015-00935-CCA-R3-CD – Filed August 17, 2016
The defendant, Lance Elliott Falcon, appeals his Knox County Criminal Court jury
convictions of rape, statutory rape by an authority figure, and sexual battery by an
authority figure, arguing that the trial court improperly commented on the defendant‟s
credibility in front of the jury, that the trial court erred in its instructions to the jury, that
the evidence was insufficient to support his convictions, that the sentence is excessive,
and that the cumulative effect of the errors at trial entitles him to a new trial. Discerning
no reversible error, we affirm the judgments of the trial court.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, and ROBERT L.
HOLLOWAY, JR., J. filed a concurring opinion in which D. KELLY THOMAS, JR., J. joined.
Jonathan Harwell and Scott Carpenter, Assistant District Public Defenders, for the
appellant, Lance Elliott Falcon.
Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Christopher Rodgers
and Kevin Teeters, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
The defendant‟s convictions relate to his assault of his 15-year-old
stepdaughter, K.A.R., on July 4, 2010.1
1
As is the policy of this court, we refer to the victim by her initials.
In early 2010, the victim moved in with her mother and the defendant, who
had been married for some three years, after having lived with her father since her
parents‟ divorce. The three lived in a mobile home in Knox County. On July 4, 2010,
the victim‟s mother went to work while the victim remained home with the defendant. At
some point that evening, the victim fell asleep on the couch and awoke later to find the
defendant “on top of” her “with his mouth in places that it shouldn‟t be.” The victim
testified that the defendant had her shorts and underwear “pulled to the side” and that his
mouth was on her “vagina.” After the victim “pushed him off . . . and told him to quit,”
the defendant went into her mother‟s room and stayed there until he left to pick her
mother up from work.
The victim said that in the weeks that followed, the defendant endeavored
to ensure that the victim was not left alone with anyone other than him, and he refused to
allow her to “talk to anybody on [her] cell phone unless [she] was sitting next to [the
defendant] on speaker phone so he could hear everything everyone said.” At some point,
the defendant “went somewhere,” and the victim telephoned her father and “told him to
hurry and come get” her. While staying with her father, the victim revealed the assault to
her sister‟s boyfriend on August 6, 2010. She then told her sister and her father, who
reported the abuse to authorities. Following her revelation, the victim was interviewed
by Knoxville Sheriff‟s Office Detectives and personnel at the Child Advocacy Center.
The victim participated in two recorded telephone conversations with the
defendant, one initiated by her and one initiated by the defendant. During the two calls,
the defendant apologized to the victim and promised not to touch her again should she
return home. Audio recordings of the telephone calls were played for the jury.
The defendant testified on his own behalf and denied the allegations. He
acknowledged, as he did in his pretrial statement to the police, kissing the victim on July
4, 2010. He also acknowledged having inadvertently touched the victim inappropriately
while they were performing cheerleading stunts in the pool, explaining,
She had showed some expression to me that she liked
cheerleading and was interested in it, and I myself varsity
lettered in cheerleading in high school, so I was excited that
we had some kind of a common interest. . . . And so, that was
showing that there was something that I could work with her
towards, and I . . . tried to do that by showing her techniques
and things. Well, we used the pool as a spotter basically.
The defendant claimed that he thought the victim was referring to the swimming pool
incident during the recorded telephone calls, saying,
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There in the initial conversation, the first phone call, my
preconception of what was being expressed was an incident
that took place at a pool where there was some slight physical
contact and then it progressed into something that was beyond
what I could comprehend at that time, I might say – try to
control the situation a little bit and get her feeling comfortable
with me so she would just come home.
He added that “[t]here‟s other things that led up to this conversation that could‟ve been
misinterpreted on her part as more affection than what it actually was.” He testified that
his understanding of the conversation was hampered by poor cellular telephone reception
and the fact that he had “smoked one and a half joints at that time in the morning.” The
defendant acknowledged that he had apologized to the victim for touching her
inappropriately but said that he had done so only because he and her mother wanted the
victim to come home. He said that his inability to understand effectuated by his smoking
marijuana carried over into his interview with the police.
The defendant testified that the victim had responded negatively to efforts
to discipline her for misbehavior after she moved in with him and his wife. He added that
the victim did not want to attend a different high school and bristled at requirements that
she put more effort into her studies.
The defendant denied that he had prevented the victim from going
anywhere alone and stated that he often transported the victim to her aunt‟s or her
grandmother‟s house or to stay with her father.
The victim‟s mother testified on behalf of the defendant that she believed
the victim had manufactured the allegations so that she would be permitted to move back
in with her father. She said that the victim “lies” and that the victim had responded
negatively to their efforts to discipline her after she moved in with them. The victim‟s
mother said that the victim was alone with her on more than one occasion after July 4,
2010, and before she reported the incident to her sister‟s boyfriend. She added that the
victim also spent time alone with her maternal aunts and her maternal grandmother
during that same time. She said that the victim did not report the abuse to anyone during
this time and did not behave any differently toward the defendant.
Two of the victim‟s maternal aunts and one maternal uncle testified that the
victim had not behaved any differently toward the defendant after July 4, 2010. Her two
aunts testified that they had spent time alone with the victim between July 4, 2010, and
August 6, 2010, and that the victim had spent time alone with her maternal grandmother.
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Based upon this evidence, the jury convicted the defendant as charged of
rape, statutory rape by an authority figure, and sexual battery by an authority figure.
Following a sentencing hearing, the trial court imposed a total effective sentence of 12
years‟ incarceration, which must be served at 100 percent by operation of law.
In this appeal, the defendant contends that the trial judge erred by posing a
question to the defendant that amounted to an improper comment on the defendant‟s
credibility, that the trial court erred by denying his request for a special jury instruction,
that the evidence was insufficient to support his convictions, that the sentence is
excessive, and that the cumulative effect of the errors at trial deprived him of the right to
a fair trial. We consider each claim in turn.
I. Trial Court Questioning
In his first assignment of error, the defendant contends that a question
posed to the defendant by the trial judge indicated to the jury that the judge did not find
the defendant credible and thus equated to an inappropriate comment on the evidence.
The State contends that the defendant waived plenary review of the issue by failing to
lodge a contemporaneous objection and that the judge‟s fleeting comment did not rise to
the level of plain error.
Near the end of the defendant‟s testimony, the prosecutor questioned the
defendant about statements he made to the victim during the recorded telephone
conversations. The defendant said that he lied to the victim during the telephone call
when he told her that her mother was jealous of the defendant‟s relationship with the
victim. When asked whether he was “lying today,” the defendant said, “No, sir.” At that
point, the following exchange occurred:
THE COURT: Are you telling this jury that [the
victim] lied to them yesterday?
WITNESS: I‟m sorry, sir. In reference to?
THE COURT: What she testified to.
WITNESS: Yes, sir, she‟s lying. This absolutely did
not happen. I‟m not this person, and I – for four years, I‟ve
had to walk around, people looking at me like I‟m some kind
of monster, and I‟m not. I would have never hurt her or
anybody else.
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The defendant did not lodge a contemporaneous objection or otherwise call
the potential error to the attention of the trial court but did raise the issue in his motion for
new trial, where he argued, as he does on appeal, that the trial judge‟s question was
hostile and that the tenor of the question indicated to the jury that the judge did not find
the defendant to be credible. In denying the defendant‟s motion for new trial, the trial
judge acknowledged the potential impropriety of the question but stated that the purpose
of the question was to clarify the record. The court noted that, because the defendant did
not lodge a contemporaneous objection, did not move for a mistrial, and did not request a
curative instruction, his attempt to assign error “for the first time after the verdict”
rendered the claim “untimely.” The court also concluded that any error would have been
harmless.
As the State and the trial court observed, the defendant did not
contemporaneously object or otherwise call attention to the potential error at any time
during the trial. See Tenn. R. Evid. 614( ) (Although subsection (b) authorizes the trial
court‟s interrogation of witnesses, subsection (c) requires that any objection to the court‟s
interrogation “may be made at the time or at the next available opportunity when the jury
is not preset.”). The defendant‟s failure to lodge a contemporaneous objection results in a
waiver of plenary review of this issue. See Tenn. R. App. P. 36(a) (“Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.
1988) (waiver applies when the defendant fails to make a contemporaneous objection);
State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987). For this reason, we
review the issue for plain error.
Before this court will notice plain error,
“(a) the record must clearly establish what occurred in the
trial court;
(b) a clear and unequivocal rule of law must have been
breached;
c) a substantial right of the accused must have been adversely
affected;
(d) the accused did not waive the issue for tactical reasons;
and
(e) consideration of the error is „necessary to do substantial
justice.‟”
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State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting and approving factors set forth
in State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). Our supreme
court emphasized that “all five factors must be established by the record before [the
supreme court] will recognize the existence of plain error.” Smith, 24 S.W.3d at 282.
Moreover, “complete consideration of all the factors is not necessary when it is clear
from the record that at least one of the factors cannot be established.” Id.
In our view, consideration of the issue is not necessary because the
defendant has failed to establish that “„a clear and unequivocal rule of law has been
breached.‟” Id. (quoting Adkisson, 899 S.W.2d at 641-42). Although our state
constitution forbids trial judges to comment on the evidence in a case, see Tenn. Const.
art. VI, § 9 (“The Judges shall not charge juries with respect to matters of fact, but may
state the testimony and declare the law.”), the Tennessee Rules of Evidence specifically
allow the court to “interrogate witnesses,” see Tenn. R. Evid. 614(b), as long as “the
questioning complies with the constitutional mandate,” see id., Advisory Comm‟n
Comments. “So long as the inquiry is impartial, trial courts may ask questions to either
clarify a point or to supply any omission.” State v. Schiefelbein, 230 S.W.3d 88, 118
(Tenn. Crim. App. 2007) (citing Collins v. State, 416 S.W.2d 766 (Tenn. 1967); Parker v.
State, 178 S.W. 438 (Tenn. 1915)). We cannot say that the single question posed by the
trial court, which the court characterized as a clarifying question, breached a clear and
unequivocal rule of law.
Additionally, consideration of the error is not “„necessary to do substantial
justice.‟” As the trial court observed, the victim‟s testimony was clear and unequivocal
with regard to the facts of the offense. In contrast, the defendant‟s testimony was
rambling and, at times, bordering on the incoherent. His credibility was damaged by the
recorded telephone conversations and his interview with the police as well as his own
admission of drug use and previous inappropriate contact with the victim. In this context,
we cannot clearly say that the trial court‟s question had any impact upon the defendant‟s
credibility. Consequently, the error occasioned by the question, if any, does not rise to
the level of plain error.
II. Jury Instructions
The defendant next contends that the trial court erred by denying his
request for a special jury instruction on the definition of cunnilingus. He acknowledges
that the trial court provided the pattern jury instruction definition of the sex act but argues
that that definition permits a conviction of rape without proof of sexual penetration. The
State asserts that the provided instruction is an accurate definition of the law.
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Under the United States and Tennessee Constitutions, a defendant has a
constitutional right to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. 1, § 6; see
State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991); Willard v. State, 130 S.W.2d 99, 100
(Tenn. 1939). This right encompasses the defendant‟s right to a correct and complete
charge of the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). In consequence, the
trial court has a duty “to give a complete charge of the law applicable to the facts of a
case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P.
30. Jury instructions must, however, be reviewed in the context of the entire charge
rather than in isolation. See Sandstrom v. Montana, 442 U.S. 510, 527 (1979)
(Rehnquist, J., concurring); see also Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)
(“[A] single instruction to a jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge.”); State v. Phipps, 883 S.W.2d 138, 142
(Tenn. Crim. App. 1994). A charge is prejudicial error “if it fails to fairly submit the
legal issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997).
Although the defendant may request special instructions, jury instructions
are sufficient when they adequately state the law. State v. Gilley, 297 S.W.3d 739, 766
(Tenn. Crim. App. 2008). When a trial court‟s charge to the jury is complete, it need not
give additional special instructions requested by the defendant. Id.; see also State v.
Story, 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980).
Prior to trial, the defendant asked the court to provide the following special
instruction to the jury: “„Cunnilingus‟ means a sex act accomplished by placing the
mouth or tongue in the vagina of another where there is any intrusion, however slight.‟”
The court denied the request, concluding that the pattern jury instruction was an accurate
statement of the law and that the defendant‟s requested instruction did not comply with
case law. The trial court instructed the jury as follows:
Sexual penetration means sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion,
however, slight, of any part of a person‟s body or of any
object into the genital area or anal openings of the alleged
victim‟s, the defendant‟s, or any other person‟s body, but
emission of semen is not required.
Cunnilingus means the sex act accomplished by
placing the mouth or tongue on or in the vagina of another.
Tennessee Code Annotated section 39-13-501 defines “sexual penetration”
as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
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however slight, of any part of a person‟s body or of any object into the genital or anal
openings of the victim‟s, the defendant‟s, or any other person‟s body, but emission of
semen is not required.” T.C.A. § 39-13-501(7). Our supreme court has explained,
The language of the statute clearly indicates a legislative
intent to separate certain defined sexual acts (“intercourse,
cunnilingus, fellatio, and anal intercourse”) from other non-
defined sexual conduct described only as “any other
intrusion.” The phrase, “or any other intrusion,” has no
modifying effect upon the defined sexual acts. The word
“or,” as used in the statute, is a . . . conjunction that functions
merely to introduce a generic non-specific alternative.
State v. Marcum, 109 S.W.3d 300, 303 (Tenn. 2003). Applying these principles, we
conclude that the instructions provided by the trial court were a complete and accurate
statement of the law and that the instruction requested by the defendant was not. We
decline the defendant‟s invitation to develop an interpretation of Code section 39-13-
501(7) different from that provided by our supreme court in Marcum. Consequently, the
trial court did not err by refusing to provide the defendant‟s requested instruction.
III. Sufficiency
The defendant contends that the evidence is insufficient to support his
convictions. We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
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As charged in this case, “[r]ape is unlawful sexual penetration of a victim
by the defendant” where “[t]he sexual penetration is accomplished without the consent of
the victim and the defendant knows or has reason to know at the time of the penetration
that the victim did not consent.” T.C.A. § 39-13-503(a)(2).
Statutory rape by an authority figure is the unlawful sexual
penetration of a victim by the defendant or of the defendant
by the victim when:
(1) The victim is at least thirteen (13) but less than eighteen
(18) years of age;
(2) The defendant is at least four (4) years older than the
victim; and
....
(4) The defendant had, at the time of the offense, parental . . .
authority over the victim and used the authority to accomplish
the sexual penetration.
Id. § 39-13-53(a). “Sexual battery by an authority figure is unlawful sexual contact with .
. . the defendant by a victim” when “[t]he victim was, at the time of the offense, thirteen
(13) years of age or older but less then eighteen (18) years of age” and “[t]he defendant
had, at the time of the offense, . . . custodial authority over the victim and used the
authority to accomplish the sexual contact.” Id. § 39-13-527(a).
The defendant asserts that the evidence was insufficient to support his
convictions of rape and statutory rape by an authority figure because the State failed to
establish penetration. Arguing again that sufficient proof of sexual penetration via
cunnilingus requires an entry into the victim‟s vaginal opening, the defendant avers that
the victim‟s testimony that the defendant placed his mouth on her vagina was insufficient
to establish the necessary element of penetration. As indicated above, we decline to
ascribe to the statute a definition different than that previously provided by the courts of
this state. See State v. Hoyt, 928 S.W.2d 935, 942 (Tenn. Crim. App. 1995), overruled
on other grounds by Spicer v. State, 12 S.W.3d 438 (Tenn. 2000) (approving definition of
cunnilingus “as „an act of sexual perversion committed by placing the mouth or tongue
on or in the vagina of another.‟”); see also generally State v. Alec Joseph Mesot, No.
M2006-02599-CCA-R3-CD (Tenn. Crim. App., Nashville, Mar. 14, 2008) (defining
“cunnilingus as „a sexual activity involving oral contact with the female genitals‟” where
“penetration of the vagina is not required”); State v. Reginald L. Parker, No. 02C01-
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9306-CR-00130 (Tenn. Crim. App., Jackson, Dec. 28, 1994) (cunnilingus defined as
“„oral contact with female genitals‟” and oral penetration not required); State v. Michael
Warren Evans, No. 02C01-9306-CC-00124 (Tenn. Crim. App., Jackson, Mar. 2, 1994)
(cunnilingus does not require penetration of vagina).
Importantly, “[t]he occurrence of penetration, even though penetration is
statutorily defined, is a question of fact. Thus, if the evidence is such that any rational
trier of fact could have found penetration beyond a reasonable doubt, the evidence must
be deemed sufficient.” State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001). “[T]he
testimony of a victim, by itself, is sufficient to support a conviction.” State v. Nance, 393
S.W.3d 212, 231 (Tenn. Crim. App. 2012) (citing State v. Strickland, 885 S.W.2d 85, 87
(Tenn. Crim. App. 1993)). Given our courts‟ interpretation of the term “penetration” and
the quantum of proof required to present a question for the trier of fact, we conclude that
the State established the element of penetration in the present case.
The defendant argues that the evidence was insufficient to support his
conviction of sexual battery by an authority figure because the state failed to establish
any sexual contact.
“Sexual contact” includes the intentional touching of the
victim‟s, the defendant‟s, or any other person‟s intimate parts,
or the intentional touching of the clothing covering the
immediate area of the victim‟s, the defendant‟s, or any other
person‟s intimate parts, if that intentional touching can be
reasonably construed as being for the purpose of sexual
arousal or gratification.
T.C.A. § 39-13-501(6). “„Intimate parts‟ includes semen, vaginal fluid, the primary
genital area, groin, inner thigh, buttock or breast of a human being.” T.C.A. § 39-13-
501(2). The indictment in this case alleged that the defendant accomplished the offense
of sexual battery by an authority figure when he “did place his hand upon the vagina of”
the victim.
The victim testified that she awoke to find the defendant “on top of” her
“with his mouth in places that it shouldn‟t be.” She said that the defendant‟s mouth was
on her vagina and that he had her shorts and underwear “pulled to the side” of her vagina
with “his hand.” In our view, this evidence supports the jury‟s finding of sexual contact.2
2
Because the inclusion of the phrase “did place his hand upon the vagina of” in the indictment is
unnecessary surplusage, the fact that the proof established sexual contact via the defendant‟s touching the
clothing covering the victim‟s intimate parts does not result in a fatal variance. See State v. Jones, 953
S.W.2d 695, 700 (Tenn. Crim. App. 1996).
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Finally, the defendant asserts that the State failed to establish that he used
his parental authority over the victim to accomplish any of the offenses. See T.C.A. § 39-
13-527(a)(3)(B) (“The defendant had, at the time of the offense, parental or custodial
authority over the victim and used the authority to accomplish the sexual contact.”)
(emphasis added). The evidence established that the defendant, the victim‟s step-father,
cultivated a close relationship with the victim after she moved into the home he shared
with the victim‟s mother. He was often alone with the victim while her mother worked
and, by his own admission, he wanted to develop a bond with the victim over their shared
interest in cheerleading. The defendant referred to the 15-year-old victim as his best
friend. He also testified that he wanted to “try to control the situation a little bit and get
her feeling comfortable with me” during the recorded telephone conversation so that the
victim would not tell her mother about the incident. This evidence sufficiently
established that the defendant used his parental authority over the victim to commit the
offenses.
IV. Sentencing
The defendant contends that the 12-year sentence imposed by the trial court
is excessive, arguing that the trial court erred by finding enhancement factors sufficient to
support the maximum sentence within the range while rejecting the defendant‟s proffered
mitigating factors.
Our standard of review of the trial court‟s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to „place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.
When imposing the 12-year sentence in this case, the trial court found “a
number of enhancement factors” and “no mitigating factors.” Specifically, the court
concluded that the defendant had a previous history of criminal behavior, as evidenced by
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his admission of daily drug use both at trial and in the presentence report and by his
offering perjured testimony, see T.C.A. § 40-35-114(1), and that the defendant violated a
position of trust, see id. § 40-35-114(14).3 The court also found that the defendant
committed the offenses against a vulnerable victim, see id. § 40-35-114(4), for the
purpose of sexual gratification, see id. § 40-35-114(7), but attached no significance to
either of those factors.
In our view, the trial court did not abuse its discretion by imposing within-
range sentences for each of the defendant‟s convictions after thorough consideration of
the purposes and principles of sentencing. Under our standard of review, we are not free
to reevaluate the weight and value assigned to the enhancement and mitigating factors
found by the trial court.
V. Cumulative Error
Finally, the defendant contends that the cumulative effect of the errors at
trial deprived him of the right to a fair trial. Having considered each of the defendant‟s
issues on appeal and concluded that the defendant is not entitled to relief for any, we need
not consider the cumulative effect of the alleged errors. State v. Hester, 324 S.W.3d 1, 77
(Tenn. 2010) (“To warrant assessment under the cumulative error doctrine, there must
have been more than one actual error committed.”).
Conclusion
The defendant has failed to establish entitlement to relief on any of the
issues presented. Accordingly, the judgments of the trial court are affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
3
The trial court “attach[ed] different weight to that enhancement factor on the rape convictions vis-à-vis
the statutory rape by an authority figure and sexual battery by an authority figure.”
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